National Guard Technicians are covered by Title VII in their capacity as civilian employees. National Guard technicians are “dual-status” employees in that they are both members of the National Guard as well as civilian federal employees of the Army or Air Force. 32 U.S.C. § 709. The EEOC recognizes the unique “dual-status” of technicians in the National Guard, noting that those individuals are considered both uniformed military personnel as well as federal civilian employees. In Dickens v. New Jersey National Guard, Charge No. 031792306 (May 16, 1984), the EEOC found that it had jurisdiction over claims raised by dual-status technicians, even though uniformed military personnel are not covered under Section 717 of Title VII. In its holding, the EEOC noted that a dual-status technician is considered both a uniformed military member as well as a civilian employee, and concluded that dual-status technicians are covered by Section 717 of Title VII when the alleged discriminatory action arises from the individual’s capacity as a federal civilian employee. However, in recent years the National Guard has been recalcitrant in thwarting the efforts of dual status technicians seeking the protections of Title VII.
A good illustration of the National Guard’s position is exemplified in Devine v. Defense National Guard Bureau, EEOC Case No. 531-2011-00321X. Mrs. Devine was a technician who filed a complaint against the National Guard Bureau (NGB) for sexual harassment. The circumstances surrounding her complaint constituted blatant sexism: She was repeatedly propositioned for sex in the most explicit of ways by coworkers, and was harassed to the point of being sent flowers to her house with sordid proposals. She filed a Formal complaint in October of 2010, and the National Guard did what it has been doing for a long time: nothing. The case made it to an EEOC Administrative Judge who issued a default judgment against NGB for their gross mishandling of the case, and for repeatedly ignoring their duties under the law.
The EEOC’s ruling read, in part, that “the Agency was warned…it could face sanctions for failure to complete an adequate investigation in this case. Nonetheless, the Agency produced an incomplete investigative file…that did not include affidavits, except those (Devine) supplied herself…The complaint file the Agency produced was incomplete because the Agency never undertook any investigation of the case…Other than the reasons set forth in the (Agency’s) Motion to Dismiss, most of which were rejected…, the only reason the Agency gave for this failure was that this was (Christopher) Martin’s first civilian Formal Complaint, implying that he was unfamiliar with the civilian side EEO procedure.”
Mrs. Devine initially sought EEO counseling from Martin in March of 2010, and subsequently filed a Formal EEO complaint in October 2010. In July of 2011, NGB filed a motion to dismiss Mrs. Devine’s complaint. The EEOC rejected the motion, and is so doing took serious issue with Martin’s role in the mishandling of the case. They found that Martin provided Devine with “materially misleading advice,” that he failed to advise her in writing of her Title VII rights as required by law and regulation, and that he “misled her into even thinking she had to make an election and could not go forward with both civilian side and military side complaints.”
If you are dual status technician and believe your EEO rights have been violated, call EEO Attorney Gregory A. Hall to discuss your case.